Citation Nr: 0842717
Decision Date: 12/11/08 Archive Date: 12/17/08
DOCKET NO. 07-19 909 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Milwaukee, Wisconsin
THE ISSUES
1. Entitlement to service connection for claimed lumbar
degenerative changes with chronic low back pain and lower
extremity radiculopathy, status post lumbar hemilaminectomy.
2. Entitlement to service connection for claimed cervical
disc disease, status post surgical fusion, to include
secondary to lumbar spine disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
C. Hancock, Counsel
INTRODUCTION
The veteran had active service from December 1964 to December
1968.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from an October 2006 rating decision issued
by RO.
The veteran testified at a RO hearing before the undersigned
Veterans Law Judge in September 2008.
The appeal is being remanded to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the veteran if further action is required on his part.
REMAND
The veteran has testified that his current low back and
cervical spine disorders are the direct result of an accident
in service. He reports sustaining injuries when a bunker
collapsed on him in November 1968 in Republic of Vietnam. He
received a cursory examination at that time and was
immediately returned to duty. See page three of hearing
transcript (transcript). He also was not afforded a
separation physical examination. See pages three and four of
transcript. The Board observes this is not the case; a
December 1968 separation examination report is on file. It
is silent as to any low back or cervical spine conditions.
Of record are private medical records illustrating multiple
surgeries undergone by the veteran. These include those
dated in October 1979, noting that the veteran underwent a
lumbar hemilaminotomy at L5-S1. An October 1979 consultation
report shows that the veteran had had difficulty with his
back for "some time."
A September 1985 discharge report shows that the veteran was
seen at that time for treatment of recurrent right sided
sciatic pain that developed after he slipped while at work.
A lumbar myelogram was performed which suggested the
recurrence of disc herniation at L5-S1. He underwent a
lumbar laminectomy at L5-S1. He later underwent additional
lumbar spine surgery in June 1999; lumbar hemilaminectomy and
excision of herniated L4-5 disc on the left.
Also of record are numerous VA medical records dated from
2004 to 2006 indicating continuous treatment for his claimed
lumbar and cervical spine disorders. A January 2004 record
shows the presence of cervical spine degenerative disc
disease. An April 2005 record includes diagnoses of
cervicalgia and radiculopathy. He underwent cervical spine
surgery in April 2005.
The veteran also has testified that he had received Social
Security Administration (SSA) disability benefits since about
2003 or 2004. See page five of transcript. As such, in an
effort to support his assertions, the RO should obtain
supporting documentation of that from the SSA.
Where there is actual notice to VA that the veteran is
receiving disability benefits from the SSA, VA has the duty
to acquire a copy of the decision granting SSA disability
benefits and the supporting medical documentation relied
upon. Murincsac v. Derwinski, 2 Vet. App. 363 (1992).
The veteran is not shown to have been afforded a VA
examination to determine the nature and likely etiology of
the claimed lumbar and cervical spine disorders. This should
be accomplished.
The veteran is hereby advised that failure to report to the
scheduled examination(s) may result in denial of the claim.
See 38 C.F.R. § 3.655 (2007). Examples of good cause
include, but are not limited to, the illness or
hospitalization of the veteran and death of an immediate
family member.
In addition to these actions, the RO should also undertake
any other development and/or notification action deemed
warranted by VCAA prior to adjudicating the claim.
Accordingly, the case is hereby REMANDED to the RO for the
following actions:
1. The RO should take appropriate steps
to contact the veteran by letter and
request that the veteran provide
sufficient information, and if necessary
authorization, to enable the RO to obtain
any additional pertinent treatment
records not currently of record. The
veteran also should be informed that he
may submit evidence to support his claim.
2. Based on the veteran's response, the
RO should assist him in obtaining any
additional evidence identified by him,
following the current procedures set
forth in 38 C.F.R. § 3.159. All
records/responses received should be
associated with the claims file.
If any records sought are not obtained,
the RO should notify the veteran and his
representative of the records that were
not obtained, explain the efforts taken
to obtain them, and describe the further
action to be taken.
3. The RO should take all indicated
action to request from the SSA the
records pertinent to the veteran's award
of SSA benefits, including administrative
decisions and the medical records relied
upon concerning that claim.
4. The veteran then should be scheduled
for a VA examination to ascertain the
nature and likely etiology of the claimed
lumbar and cervical spine disorders. The
claims file must be made available to the
examiner, and the examination report
should include discussion of the
veteran's documented medical history and
assertions. All appropriate tests and
studies should be accomplished and all
clinical findings should be reported in
detail.
Based on his/her review of the case, the
examiner should opine as to whether the
veteran has current lumbar and/or
cervical spine disability that is at
least as likely as not is due to the
claimed injury or other event of his
period of active service, including duty
in the Republic of Vietnam.
5. After completing the requested
actions, and any additional notification
and/or development deemed warranted, the
claims of service connection should be
readjudicated in light of all the
evidence of record. If any benefit
sought on appeal remains denied, the RO
should furnish to the veteran and his
representative an appropriate
Supplemental Statement of the Case (SSOC)
that includes clear reasons and bases for
all determinations, and afford them the
appropriate time period for response.
Thereafter, if indicated, the case should be returned to the
Board for the purpose of appellate disposition.
The veteran may furnish additional evidence and/or argument
during the appropriate time period. See Kutscherousky v.
West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App.
104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995);
Quarles v. Derwinski, 3 Vet. App. 129, 41 (1992).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2008).
_________________________________________________
STEPHEN L. WILKINS
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).